Simeon Nash, for the plaintiff in error. The letter contained in the indictment does not come within the statute.1 The letter recites, in the first place, a fact admitted to be true, that Hall had failed to stamp the note, and was liable to a fine for so doing, and then says: "You will please call immediately and make`satisfaction, and save yourself trouble." There is here no malicious or willful threat of any thing, not even of a complaint for not stamping the note. To refer to the penalty affixed is not a threat, certainly not a direct threat. The statute says the letter must contain willful and malicious threats of injury. What more is there in this letter than any one would wish who had taken a note, by mistake, without a stamp, and wanted the maker to make it valid, by attaching a stamp to it. Is it possible that to threaten a party with a complaint, under the statute, in such a case, if he does not stamp the note, comes within the statute? I can not believe in any such construction. The question was decided in the negative in the case of Rex v. Southerton.2 W. H. West, Attorney-General, for the State. After carefully reading the record in this case and the evidence it embodies, I think the conviction wrong. The law certainly contemplates that the threats shall be of some unlawful act or mischief. The threat, to institute a well grounded prosecution certainly does not come within either of these classes. The extorting of money under such threats may be punishable "as compounding a felony," but not under the charge in this indictment Besides it does not appear from the letter or from the evidence, that, at the time the letter was written or sent, the defendant intended to extort money for the boy Chandler, or that he had at that time learned that the boy had not been sent to school. For all that appears in the letter or the evidence, the whole matter touching the $100 note, etc., arose out of information received after writing the letter. The letter itself certainly does not import any threat to do any unlawful act or mischief. I am, therefore, so clearly of the opinion that the conviction is against both law and evidence, that I can not ask its affirmance. BRINKERHOFF, J. Section 23, of the act of March 8, 1831, "for the punishment of certain offenses therein named," 3 under which the indictment in this case was found, reads as follows: "That if any person shall, knowingly, send or deliver any letter or 1 S. & C. 430. 26 East, 126, 133. See Tucker's Case, 1 Moo. C. C. 134; 2 Russ. 707, 709, 715, 718; 2 East P. C. 1115; 4 C. & P. 562; Gill's Case, 2 Lewin, 305; 2 East, 126, 140; 1 Bouv. Law Dic. 636; 15 Pick. 273; 2 Mass. 163; Archb. Or Pl. 63, 17. 3 S. & C. 430. writing, with or without a name subscribed thereto, or signed with a fictitious name, containing willful and malicious threats of injury of any kind whatever, or with intent or for the purpose of extorting money or other valuable things from any person; every person so offending shall, upon conviction thereof, be fined in any sum not less than fifty nor more than five hundred dollars, or be imprisoned in the cell or dungeon of the jail of the county, and be fed on bread and water only, not exceeding ten days, or both, at the discretion of the court." We are of opinion that in order to bring a letter, sent or delivered, within the terms or meaning of this act, it must, on its face contain a threat of injury of some kind, or the communication must be of such a nature as is calculated to extort money or other valuable things. But the evidence in this case, all of which is set out in the bill of exceptions taken at the trial, shows that the matter of fact and the matter of law stated in the letter were true. Hall had given the note referred to in the letter; it was without a stamp; and a liability to the penalty prescribed by the act of Congress had been incurred. "You will please call immediately and make satisfaction." This, it seems to us, ought not, under the circumstances, to be construed to be any thing more than a request to come and correct a mistake, or supply an oversight, by furnishing and affixing the stamp necessary to give validity to the note. "And save yourself trouble." This is the presentation of a motive, and a legitimate one, for a compliance with the request. The letter itself, taken as a whole, and read in the light of the evidence, amounts but to this; it states truly a matter of fact and a matter of law; requests the doing of what ought to be done, and presents a legitimate This is all there is of the letter. motive for doing it. What may have orally passed between Brabham and Hall at the interview which followed the sending and receipt of the letter, what threats were then verbally made, and obligations extorted rightfully or wrongfully, are outside of the case. They do not come within the purview of the statute. We think the court below erred in overruling the motion for a new trial. Judgment reversed. DAY, C. J., and SCOTT, WELCH, and WHITE, JJ., concurred. THREAT TO ACCUSE OF CRIME TO COMPEL PAY- STATE V. HAMMOND. [80 Ind. 80.] In the Supreme Court of Indiana, 1881. A Threat to Accuse Another of crime if made for the purpose of inducing payment of a debt, is not within the statute of blackmailing. Information of blackmailing. The opinion states the case. The information was quashed below. D. P. Baldwin, Attorney-General, O. W. Watkins, Prosecuting Attorney, for State. J. B. Kenner and J. I. Dille, for appellee. WORDEN, J. Information against the appellee, based upon affidavit, charging that "one Nathan Hammond on the 3d day of November, 1881, at the county of Huntington, and State of Indiana, did then and there unlawfully, feloniously and knowingly send a certain written communication with the name of the said Nathan Hammond subscribed thereto, to one Alfred H. Wintrode and did then and there thereby accuse and threaten him, the said Alfred H. Wintrode, to accuse him, the said Alfred H. Wintrode, of the crime of having obtained money from him, the said Nathan Hammond, through false pretenses, which said written communication was in these words, that is to say: "Mr. Alfred Wintrode "DORA, IND., November 3, 1881. "SIR: I want you to pay me that money that you got to go to California on in ten days from this date, as I am prepared to prove that you got it under false pretenses, for I can prove by a man that saw you have the money, that you had other money before you left here that you could have used to go on; also the $70 that you got in California. I can prove a pine blank that you had the money or a check for money at the very time you got it, and Mr. Bryant says he had no arrangement to send you any money, and that you got that under false pretense. Now, if you do not make arrangements to settle in ten days I propose to prosecute you to the full extent of the law for obtaining money under false pretenses to defraud me. You can settle it by giving your note with good security, payable in ninety days, with interest from the date of the receipt of the money; if you do not you will find yourself in a very close place as it is a penitentiary crime. I have three of the best counsel that can be got in Wabash and Huntington. ...Yours, "NATHAN HAMMOND.' "Such written communication was inclosed in an envelope and addressed thus: "Mr. A. H. Wintroad, "Huntington, 666 'Indiana.' "And was mailed at and in the post-office Dora, at and in Dora, Wabash County, Indiana, and was received by the said Alfred H. Wintrode in the ordinary course of mail at the post-office Huntington, Huntington County, Indiana; and which charge and charges and accusations so made in such written communication, which if true, would constitute a crime punishable by law, which crime so charged and accusation so made was to and of the said Alfred H. Wintrode, and the Alfred Wintroad so accused in said written communication is the same as Alfred H. Wintrode, and the said Nathan Hammond intended and meant to accuse, and did accuse Alfred H. Wintrode in his communication addressed to Alfred Wintroad, with intent then and thereby feloniously, unlawfully and knowingly to extort and gain from him, the said Alfred H. Wintrode, the sum of one hundred dollars in lawful current money of the United States." There were further allegations intended to show the right to put the defendant on trial upon affidavit and information which need not be noticed. On motion of the defendant the information was quashed and he was discharged, The State excepted. Error is assigned here upon the ruling below. The proceedings were founded upon section 1926,1 which provides as follows: "Whoever either verbally or by any letter or writing, or any written or printed communication demands of any person, with menaces of personal injury, any chattel, money, or other valuable security; or whoever accuses or threatens to accuse, or knowingly sends or delivers any letter or writing, or any written or printed communication, with or without a name subscribed thereto, or signed with a fictitious name; or with any letter, mark or designation, accusing or threatening to accuse any person of any crime punishable by law or of any immoral conduct which, if true, would tend to degrade and disgrace such person, or in any way to subject him to the ridicule or contempt of society; or to do any injury to the person or property of any one, with intent to extort or gain from such person any chattel, money or valuable security, or any 1 Rev. Stats. 1881. by the aid of the unfaithful servant as truly as if it had been effected by an inanimate instrument, and it followed that the servant was guilty of the same offense, because he was present aiding and abetting. Would there have been any question made whether the servant was guilty or not, if instead of being and staying within the house he had come with his confederate to the door on the outside, and had opened it with the key intrusted to him, and both had gone in and stolen the plate? If not why should not the servant in view of the other cases, above cited, be held guilty of burglary if without a confederate he had opened and gone into the house alone, and immediately stolen the plate himself? An opening for this purpose was no less unlawful, and it would appear as much a burglary as an opening to let in another thief. By the common law a servant would be guilty of larceny of the felonious taking and carrying away—of the money or goods of his master, even if they had been handed and intrusted to him to be carried to another person, by appropriating them to his own use. And so though he might have the privilege of opening and entering his master's mansion house to go to bed therein, he would, it seems to me, be guilty of burglary if he unlocked and entered it in the night time with the intent to rob, and did then commit robbery therein; only, to justify a conviction in such a case the jury ought to be satisfied by the evidence beyond a reasonable doubt, that the intent to rob existed when the house was entered, not formed afterwards. Doubt is cast upon this view by a passage of Sir Mathew Hale's, in commenting on some statutes of Elizabeth's reign, in which he says: "If the servant unlatch a door, or turn a key in a door in the house, and steal goods out of that room, yet it seems to me the servant shall not thereupon be ousted of his clergy, for the opening of the door in this manner is within his trust, and so no breaking of the house or robbery within this act. But if a servant break open a door whether outward or inward, * and steal goods, would make burOf these passages this is a robbery and breaking the house within the statute, for such a breaking, though by a servant in the night, glary, for such an opening is not within his trust." 1 it is remarked in Russell on Crimes: "It seems to have been considered that the question whether such act would amount to a breaking, must depend upon the point whether the door might have been opened by the servant in the course of his trust and employment." But doubt of this is intimated in a note added with a sed quære and referenee to Edmonds' Case.3 We have, therefore, supposed we might consider the question as not settled by the passage in the Pleas of the Crown. |